The holding of captured enemy forces so they cannot return to the battlefield to kill one’s own soldiers is elemental. But, the millennia-old common sense practice has its critics, including our Examiner.com civil rights column dueling partner, J.D. Tuccille:

Indefinite detention until the war ends? Given that war has never been declared, and that we face a rather amorphous enemy with no clear chain of command, the end of the war may be hard to recognize — and a long time coming.

No war declared?

No fair reading of the congressional Authorizations to use Military Force (AUMF) in Iraq and Afghanistan can conclude they are anything but declarations of war. The Constitution does not require that Congress chant magic words.

In any event, Congress authorized the use of military force and the waging of war involves identifying the enemy, and killing or capturing them without regard to the evidentiary niceties of civilian criminal courts.

The United States is not required to put its citizens at greater risk when the enemy chooses to amorphously follow no chain of command in a war without end. Quite the contrary, the Geneva Conventions were enacted precisely to penalize these illegal enemy combatants (IEC) that operate among civilian populations.

No one knows how long any conflict will last until it has lasted. The United States held hundreds of thousands of German and Japanese POWs in the Lower Forty-Eight for years, not knowing when the war would end. None were allowed to hire lawyers and sue for release.

Last June in Boumediene v. Bush, the Supreme Court ruled for the first time in our history that aliens captured and held as enemy combatants abroad had a constitutional right to challenge their detentions by filing petitions for habeas corpus in federal court. The Court recognized that its holding was unprecedented. Yet it said that it was not deciding how such proceedings should be conducted, or even what the government must show to prevail.Yesterday, the federal district court in Washington concluded the first such habeas proceeding for six detainees. It held that the government had established a basis for holding only one of them as an enemy combatant. The court acknowledged that the evidence the detainees were planning to travel to Afghanistan to join the fight was perfectly appropriate for use as intelligence (the purpose for which it was collected) — but that such evidence was not sufficient to carry the government’s burden of proving in court that the detainees were enemy combatants.

Former Federal Judge Mukasey sympathizes with the court given that Congress has refused to pass legislation since Boumediene standardizing procedural and evidentiary rules for these cases and recognized that the District Court thrice refused to release the five detainees until Bosnia agreed to take them in.

Yet, my civil rights colleague wonders why:

…did we rewrite the rules this time around? Why didn’t we use the existing criminal courts or military courts which have already been tested, rather than create a flimsy new legal system out of thin air, only to find that many of the legal experts chosen to staff the new system find it repugnant and unjust?

POWs have never before had access to military, much less civilian courts, even for war crimes trials, much less habeas proceedings to determine status, and the Boumediene Supreme Court acknowledged that the procedures in place were superior to those used in past U.S. military tribunals and those used at Nuremburg.

So, the re-writing of the rules has been by courts, not the Administration, and it is the duty of Congress to act to prevent Americans from being exposed to release detainees without a country to accept them.

Additionally, Tuccille cites the resignations of a few military JAG lawyers and objections from an anonymous public defender as evidence of a “bad system.” This, despite the PD’s admissions that he was pleased with several tribunal and federal court rulings in favor of defendant detainees. As a veteran criminal defense lawyer myself, I recognize his approval of a system and judges that will grant defense motions.

The “evidence” J.D. cites in the conduct of the military tribunals would also indict the America civil justice system. That defendants get evidence thrown out is a sign the system is working! Kangaroo courts convict and nothing else.

Should we throw out the “system”? Of course not.

It could be that the upset prosecutors should come home to practice law and quit playing soldier. They are exhibit A of what Michael Barone has dubbed the over-lawyered war.